Citation Nr: 0530793
Decision Date: 11/16/05 Archive Date: 11/30/05
DOCKET NO. 00-00 131 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a higher initial rating for post-traumatic
stress disorder (PTSD), evaluated as 50 percent disabling
prior to June 11, 2002, and 70 percent disabling on and after
that date.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. R. Fletcher
INTRODUCTION
The veteran served on active duty from November 1966 to July
1969, to include service in the Republic of Vietnam. He was
awarded the Purple Heart Medal and the Bronze Star Medal with
"V" device.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1999 rating decision by the
Detroit, Michigan Department of Veterans Affairs (VA)
Regional Office (RO). This case was before the Board in
August 2001 when it was remanded for additional development.
In March 2001, a hearing before the undersigned Veterans Law
Judge was held at the RO. A transcript of this hearing is of
record.
FINDING OF FACT
Since November 30, 1998, the veteran's PTSD has been
productive of occupational and social impairment which more
nearly approximates deficiencies in most areas and an
inability to establish and maintain effective relationships
than reduced reliability and productivity and difficulty in
establishing and maintaining effective work and social
relationships.
CONCLUSION OF LAW
The veteran's PTSD warrants a 70 percent evaluation, but not
higher, throughout the initial evaluation period.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130,
Diagnostic Code 9411 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), [codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)] and
the regulations implementing the VCAA provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. In addition, VA must also request
that the appellant provide any evidence in the claimant's
possession that pertains to the claim.
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2004), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the veteran provide any
evidence in the claimant's possession that pertains to the
claim.
The Board notes that the record reflects that by a statement
of the case issued in December 1999 and several subsequent
supplemental statements of the case, the veteran has been
informed of the requirements for the benefit sought on
appeal, the evidence necessary to substantiate his claim, the
information that he must provide to enable the RO to obtain
evidence on his behalf, and the evidence that he should
submit. Moreover, the pertinent medical records have been
obtained, and the veteran has been afforded an appropriate VA
examination. The veteran has not identified any outstanding
evidence or information that could be obtained to
substantiate the claim. The Board is also unaware of any
such outstanding evidence or information.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. at 120.
In the case at hand, the veteran's claim was initially
adjudicated prior to the enactment of the VCAA in November
2000. Following the provision of the required notice and the
completion of all indicated development of the record, the RO
readjudicated the veteran's claim. There is no indication or
reason to believe that the ultimate decision of the RO on the
merits of this claim would have been different had complete
VCAA notice been given at an earlier time. In the Board's
opinion, the RO properly processed the claim following
compliance with the notice requirements of the VCAA and that
any procedural errors in its development and consideration of
the claim were insignificant and non prejudicial to the
veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Accordingly, the Board will address the merits of this claim.
PTSD
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity caused by a given disability. Separate
diagnostic codes identify the various disabilities. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2004).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. In cases such as this one
where the original rating assigned is appealed, consideration
must be given to whether the veteran deserves a higher rating
at any point during the pendency of the claim. See Fenderson
v. West, 12 Vet. App. 119 (1999).
PTSD is to be assigned a 50 percent evaluation for
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment or abstract thinking;
disturbances of motivation and mood; and difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent evaluation is warranted when
there is occupational and social impairment with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere with
routine activities; speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or worklike setting); inability to establish and
maintain effective relationships. A 100 percent evaluation
requires total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name. 38
C.F.R. § 4.130, Diagnostic Code 9411.
The GAF is a scale reflecting the "psychological, social, and
occupational functioning in a hypothetical continuum of
mental health-illness." [citing the American Psychiatric
Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL
DISORDERS (4th ed.), p.32.] GAF scores ranging between 61 to
70 reflect some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within
the household), but generally functioning pretty well, and
has some meaningful interpersonal relationships. Scores
ranging from 51 to 60 reflect moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). Scores ranging from 41 to 50 reflect serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in
social, occupational or school functioning (e.g., no friends,
unable to keep a job). Scores ranging from 31 to 40 reflect
some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable
to work). See Carpenter v. Brown, 8 Vet. App. 240, 242
(1995).
In the case at hand, the veteran submitted a claim for
service connection for PTSD in November 1998.
VA hospitalization records dated from April 1999 to May 1999
note that the veteran was admitted to the PTSD recovery
program with complaints of traumatic memories.
A June 1999 VA examination report notes the veteran's
complaints of flashbacks and nightmares associated with his
combat experiences in Vietnam. The veteran reported that,
after working the night shift, he liked to go home and work
on his car with his son, work on other projects, or ride his
motorcycle. The veteran reported that he had been employed
as a custodian at the post office since 1997. The diagnoses
included combat-related PTSD. The GAF score was 50.
By rating decision dated in July 1999, the RO granted service
connection for PTSD and assigned a 50 percent evaluation,
effective November 30, 1998. The veteran appealed the rating
assigned.
Treatment records from Elaine Tripi, Ph. D., dated from 1999
to 2000, note the veteran's ongoing treatment for PTSD. In
May 1999, the veteran reported trying to open communication
with his wife and son in hopes of reestablishing a
relationship with them. In July 1999, the veteran reported
that he and his sons were getting closer. He indicated that
he had been going to many of his older son's baseball games.
He also stated that he and his wife and sons were preparing
for a vacation. In August 1999, the veteran reported that he
and his wife had a conversation about the difficulties in
their lives; after the conversation, his wife hugged him. In
November 1999, the veteran reported that he had taken a
second job. In January 2000, the veteran reported that he
was very stressed in all aspects of his life.
During an April 2000 personal hearing, the veteran testified
that he had problems sleeping, problems concentrating, and
was hypervigilant. He indicated that he tended to avoid
people. He stated that he was still married. He was working
at the post office; in order to cope with his job, he
occasionally had to isolate himself at work.
In a statement dated in May 2000, Dr. Tripi stated that
during periods when his PTSD was exacerbated, the veteran
became suicidal, homicidal, and severely depressed. She
noted that the veteran was still employed at the post office,
although he had problems with supervisors and co-workers and
occasionally decompensated at work. She reported that the
veteran's current GAF score was 47.
VA hospitalization records note that the veteran was
hospitalized in March 2001 with complaints of chest pain and
anxiety. Stress test revealed no acute EKG changes.
The veteran testified during a March 2001 hearing before the
undersigned that he was currently working at the post office
as a mechanic. He stated, "my supervisor said, if I feel
that I need to, that I can go outside, get away from
everybody, go have a cigarette, calm myself down" before
going back to work. He also indicated that he had missed two
weeks of work in the past month. He characterized the month
as a particularly bad month. He also indicated that he had
used up all his sick leave, but had been approved for family
medical leave without pay, and he also had some annual leave
remaining. The veteran stated that he was still married to
his wife, but his wife did not understand him.
A January 2002 VA outpatient treatment record notes that the
veteran was seen with complaints of hallucinations.
A June 7, 2002, VA examination report notes that the veteran
was currently living with his wife and working for the post
office. The veteran reported that, as of late, his home life
was under better control without any major problems, but he
was having a lot of interpersonal difficulties at work.
Specifically, he lost his temper and was unable to function
in his job. He complained of flashbacks, hypervigilance and
nightmares. Upon examination, the veteran was rather well-
kept. He was agitated and fidgeted. His speech was rapid
and loud. His mood was described as agitated, depressed,
nervous and worried. His thought processes were coherent and
goal directed. He denied hallucinations and did not describe
any obsessive or ritualistic behavior. The diagnosis was
PTSD. The GAF score was 51. The examiner stated that the
veteran was maintaining a close to normal familial life, but
had no friends. The examiner also noted that the veteran had
difficulties at work due to interpersonal conflicts and an
inability to obey orders. It was noted that, historically,
the veteran did very well in solitary types of jobs, like
truck driving. The examiner opined that the veteran was
employable.
A June 11, 2002, VA urgent care record notes that the veteran
was seen with complaints of auditory and visual
hallucinations. He stated that he thought he had gotten his
medications confused. He was not admitted to the hospital at
that time.
A July 2002 VA outpatient treatment record notes that the
veteran was very hypervigilant and had significant PTSD
symptoms. He complained of auditory hallucinations. He
stated that he continued to work at the post office, but
argued a lot with his peers at work. He denied suicidal or
homicidal ideation.
In a July 2002 letter to the veteran's employer, Dr. Tripi
opined that the veteran's PTSD had been exacerbated by his
employment at the post office. Specifically, he was having
problems dealing with supervisors and co-workers. Dr. Tripi
noted that the veteran's sleep was poor, resulting in his
irritability and tiredness during the day. She stated that
the veteran was "not capable of substantial, gainful work
activity" because of his PTSD. She indicated that his GAF
score was 40 and recommended that the veteran retire from
employment at the post office.
In August 2002, the veteran reported that he was no longer
working.
By rating decision dated in September 2002, the veteran was
awarded a total rating based on individual unemployability
due to service-connected disability (TDIU), effective June
11, 2002. He was also awarded a 70 percent rating for PTSD,
effective June 11, 2002.
The Board concludes that the veteran is entitled to an
initial 70 percent rating for PTSD under the schedular
criteria.
In the case at hand, the veteran's psychiatric examinations
in June 1999, May 2000 and June 1992 resulted in GAF scores
of 50, 47, and 51, denoting serious symptoms or serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job). In July 2002, the
veteran's private examiner assigned a GAF score of 40,
denoting major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable
to work). The medical evidence shows that the veteran's PTSD
has resulted in nearly continuous anxiety and depression
affecting his ability to function independently and
difficulty in adapting to stressful circumstances at work and
inability to establish and maintain effective relationships
with anyone other than his family.
The preponderance of the evidence establishes that, for the
period beginning November 1998, the impairment from the
veteran's PTSD has more nearly approximated the social and
occupational impairment with deficiencies in most areas and
inability to establish and maintain effective relationships
required for a 70 percent evaluation than the impairment
contemplated by a 50 percent rating.
The Board also has considered whether the veteran is entitled
to a "staged" rating for his PTSD, as prescribed by
Fenderson. However, at no time does the evidence show
entitlement to a 100 percent schedular rating. Although the
veteran has had some recent complaints of hallucinations, the
evidence does not show that the disability has resulted in
gross impairment in thought processes or communication;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; or memory loss for
names of close relatives, own occupation, or own name, at any
point during the initial evaluation period. Therefore, the
Board has concluded that the social and industrial impairment
from the disability does not more nearly approximate the
total level of impairment required for a 100 percent rating
than the level of impairment required for a 70 percent
rating. Accordingly, a 100 percent rating is not warranted
under the schedular criteria.
ORDER
Entitlement to a 70 percent evaluation for PTSD throughout
the initial evaluation period prior to June 11, 1002, is
granted, subject to the applicable criteria governing the
payment of monetary benefits.
Entitlement to an initial evaluation in excess of 70 percent
for PTSD is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs